Militia

Militia

A group of private citizens who train for military duty in order to be ready to defend their state or country in times of emergency. A militia is distinct from regular military forces, which are units of professional soldiers maintained both in war and peace by the federal government.

In the United States, as of the early 2000s, the National Guard serves as the nation's militia. Made up of volunteers, the National Guard acts under the dual authority of both the federal and state governments. According to the Constitution, Congress can call the National Guard into federal service for three purposes: to enforce federal laws, to suppress insurrections, and to defend against invasions. State governors can call upon the National Guard for emergencies that are prescribed by state law.

The American militia system has its roots in ancient English tradition, dating back to the Anglo-Saxon militia that existed centuries before the Norman Conquest in 1066. This militia, known as the fyrd, consisted of every able-bodied male of military age. It was traditionally used for defense only, and the sovereign could call upon the fyrd to fight if the men would be able to return to their homes by nightfall. Fyrd members were required to supply their own weapons, which they could use only in the service of the king.

After 1066 the victorious Normans retained this militia system, and successive English monarchs continued to rely on citizen soldiers for national defense. During the reign of the Tudors (1485–1603), professional forces began to be used in England, but their main task was to train the local militias, which were much less expensive to use than their professional counterparts. The major element of training was the muster, which was a mandatory gathering of all able-bodied free males, age 16 to 60, for the purpose of appraising the participants, their weapons, and their horses. Mustering was an ancient ritual, but during her reign Queen Elizabeth I systematized the practice, requiring musters four times a year and authorizing payment for those attending. Even with this enhanced level of organization, however, musters were as much social occasions as they were military drills. Participants looked forward to musters as an opportunity to eat and drink heavily before engaging in fights and mock battles.

When the English began to establish colonies in North America in the seventeenth century, the colonial governments continued to require all able-bodied free men to possess arms and to participate in the colonial militias. Each colony formed its own militia unit, appointing officers, providing training, and building its own fortifications. The function of each colonial militia was principally to defend the settlers' homes and villages against Indian raids, and at this they were largely successful.

Colonial militias were much less effective when used for offensive purposes on extended campaigns far from the militia members' homes. George Washington discovered this when, as a colonel in the Virginia militia, he had great difficulty recruiting enough men to fight the French and Indian War, which lasted from 1754 to 1763. Few men were willing to report for duty. Of those who did, few were well armed, and many quickly deserted the troops and returned home. Some militia officers instituted drafts to recruit more men, but even then, many of the draftees simply paid less-qualified men to report in their places. The British were finally able to win the war when Prime Minister William Pitt made changes in recruiting policies and the military bureaucracy, which made serving in the militia more palatable for the American colonists.

After Great Britain defeated France in the French and Indian War, it was left with a greatly enlarged North American empire to manage and finance. Large numbers of British troops were stationed in America, and the colonists were expected to quarter them and to pay various taxes and fees, including the well-known Stamp Tax, to finance the troops. These additional taxes were one of the principal grievances that motivated the American colonists to prepare for revolution and to form the select militia units that became known as the "Minutemen"; this name reflected the fact that the men were trained to respond instantly when called. The Minutemen first saw action when the Massachusetts unit was called to defend the colonists' military stores at Lexington and Concord on April 19, 1775.

During the Revolutionary War, American military forces consisted of a combination of state militias, specially trained militia units (such as the Minutemen), and the Continental Army, a small professional force created by Congress. The militia was much more effective than it had been during the French and Indian War because its members were fighting for a cause in which they fervently believed. In addition, the militia system had been reorganized and strengthened: there were more training days, the punishment was more severe for missing musters, and fewer men were exempted from military duty. Even so, militia forces were much less reliable than the professional army, and commanders found it difficult to plan their moves, never knowing exactly how many men would show up and how long they might stay. Ultimately, however, the militias played a critical role in helping the colonists to defeat the British, supplying enough men to keep the Continental Army going and providing, on very short notice, large numbers of armed men for brief periods of emergency service.

When state delegates met in 1787 to create the Constitution for the new United States of America, the principal division was between those delegates who favored a strong central government and those who preferred to leave more power to the states. The former wanted a strong standing military, and the latter argued for greater reliance on the state militias. The issue of a standing military was particularly controversial because many Americans were suspicious of the very concept of a standing army, associating it with the tyranny they had experienced under Great Britain. Nevertheless, because most of the delegates were more concerned about invasion than domestic tyranny, Congress was given the power to create a standing army if it so chose. Advocates of state power did achieve a partial victory, however, in that authority over the state militias was divided between the federal government and the state governments. Congress was given the authority to organize, arm, and discipline the militia, but states were given the power to appoint officers and provide training. Congress, not the president, was given the power to summon state militias into federal service for just three specific tasks: "to execute the laws of the Union, suppress insurrections, and repel invasions" (Art. I, Sec. 8, Cls. 15, 16).

During his first term as president, George Washington worked with Secretary of War Henry Knox to reorganize and strengthen the militia. They sent their plan to Congress, and after heated debate Congress, on May 9, 1792, passed what became known as the Uniform Militia Act (1 Stat. 264). This law, which remained the basic militia law until the twentieth century, stated that all free, able-bodied white men, age 18 to 45, were required to serve in their state militias and that they were obligated to supply themselves with the appropriate firearms and equipment. The law provided certain specifications for how militia units were to be organized, but Congress left many details to the states and declined to include sanctions for states or individuals who failed to comply with the law. As a result, the act had little legal weight and served mostly as a recommendation to the states.

All 15 states passed laws in response to the Uniform Militia Act. These laws had some provisions in common, such as the right of the people to keep and bear arms and the exemption of conscientious objectors from military duty; the laws varied in other areas, such as in the frequency of training and the methods for selecting officers. In general, the Uniform Militia Act and the laws passed in response to it created many strong and effective state militias; in addition to being an indispensable part of ceremonies and parades, state militia units manned coastal forts, guarded criminals, enforced quarantines, and assisted the police. However, the many state laws prevented the integration of the various state militias into a reliable force for federal purposes. The federal government often lacked even basic information about the strength and organization of the state militias, making it difficult to make full use of them for military purposes.

Despite the many weaknesses of the militia system, it continued to receive widespread support in the nineteenth century from politicians and the public, who were eager to avoid the expense of a standing army and who viewed the idea of the citizen-soldier as crucial for the maintenance of U.S. freedom and independence. In reality, however, the militia system was often ineffective and unreliable, as during the War of 1812 when militia units were chronically undermanned and poorly prepared. Despite calls for reforms, the militia system declined steadily during the nineteenth century. Less training was required, fewer men attended, and fewer still had firearms, instead showing up for training with cornstalks and broomsticks.

By the 1830s and 1840s, several states had weakened or abolished their systems of compulsory service, relying instead on volunteers. As a result, the militia units became more ceremonial and elitist in nature, as members donned expensive uniforms and equipment to march in parades and other festivals. These volunteer units were useful to state and local authorities because they often assisted the local police in maintaining law and order, which were frequently disrupted by riots and protests, particularly in larger cities.

After the Civil War, in which militia units played a crucial role by supplementing the regular armies of both the Union and the Confederacy, the militia system again went into a decline. A shortage of funds required cutbacks in militia programs, and military service became more unattractive as the rapid growth of industrialism led to frequent labor strikes, which the Army was required to police. According to Russell F. Weigley, a prominent military historian, "The main effect of industrialism seems to have been to reduce inclination and time for amateur soldiering, and thus to weaken the militia institutions inherited from the rural past." One rejuvenating factor for the militia during this time, however, was the formation of the National Guard Association (NGA) in 1879. This organization was formed to represent the militia's interests before federal and state governments and the public. The name "National Guard," borrowed from the French, was chosen because most states at the time were already using that term to designate their organized volunteer companies. The leaders of the National Guard Association insisted that their units were an integral part of the U.S. military establishment but also maintained the importance of the guard's connection to individual states. In 1887 the NGA achieved its first victory by persuading Congress to raise the federal annual appropriation to arm the guard to $400,000.

At the beginning of the twentieth century, Congress and President William McKinley began work to reform the nation's military structure and operations. Secretary of War Elihu Root saw that the United States needed a workable reserve system, rather than the militia, which still operated under the Uniform Militia Act of 1792. Root worked with leaders from the NGA to create a Reorganization Plan, and the result was the passage in 1903 of the Dick Act (32 Stat. 775), so named for Major General Charles Dick, who had played a large role in creating and supporting the bill. This act formally repealed the Uniform Militia Act of 1792 and extended federal involvement with the National Guard in peacetime. More federal funds were made available to state National Guard units, and in return the state units were required to drill their troops 24 times a year, train reservists in summer encampments, and submit to annual inspections by federal officers.

In the years leading up to World War I, professional officers in the regular army and leaders of the National Guard consistently opposed each other on the issue of establishing a national reserve free from all ties to the states. The NGA contended that National Guard units were the proper national reserve, but military professionals argued that national security could not depend on reserves that had two commandersin-chief and two chains of command—federal and state. In congressional hearings held in 1916, then ex-Secretary of War Root argued against the guard as a reliable reserve: "The idea … that forty-eight different governors can be the basis for developing an efficient, mobile national army is quite absurd."Proponents of a national reserve won the debate, and on June 3, 1916, President woodrow wilson signed the National Defense Act (39 Stat. 166), which for the first time created reserve components of the regular services under exclusive federal control. The act also conferred federal status on the National Guard, with the federal government providing more funding and exerting more control over it. National Guard units still reported to the state governors and served on a statewide basis, but guardsmen could now be drafted directly into federal service for the duration of an emergency. Guard members now had to take loyalty oaths to the United States as well as to their home states, and the War Department could cut federal aid to the guard unit of any state that failed to comply with the mandates of the act.

This basic system established in 1916 has continued to be maintained with few changes over the course of the twentieth century. The state National Guard units report to both the state and federal governments, but when they are called into federal service, state governors lose their authority over them. This state and federal authority conflicted several times in the 1950s and 1960s, when guard units from southern states were called into federal service to enforce federal desegregation mandates over the objections of the state governors.

Another type of militia, not recognized by the federal or state governments, is the private militia. Private militias are composed of private citizens who train for armed combat. The formation of private militias became more common in the United States in the early 1990s as some political groups armed themselves to demonstrate their opposition to certain policies and practices of the federal government. One of the most publicized private militia groups was the Montana Freemen, who were involved in a lengthy standoff with agents of the Federal Bureau of Investigation in 1996.

One of the most horrifying events of the 1990s, the Oklahoma City bombing in 1995, had a significant impact on private militias in the United States during that decade. Although the bombings, which killed 169 people, were not carried out by an identified private militia, a number of individuals reportedly were drawn to join these private groups after witnessing the attack. The total number of private militia groups climbed to an estimated 370 in 1996, according to the Southern Poverty Center, which is well-known for tracking hate groups in the United States.

Militia groups faded quickly in the latter half of the 1990s, however. Law enforcement officials began cracking down on the groups, and many members reportedly became impatient in training for the causes of the various militia. By 1999, the total number of private militias in the U.S. had shrunk to an estimated total of 68. Law enforcement officials continue to track militia, citing their extremist beliefs and their propensity for conspiring to commit acts of violence.

Further readings

Fields, William S., and David T. Hardy. 1992. "The Militia and the Constitution: A Legal History." Military Law Review 136 (spring).

Hardaway, Robert, Elizabeth Gormley, and Bryan Taylor. 2002. "The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms." St. John's Journal of Legal Commentary 16 (winter): 41–146.

Cross-references

MILITIA. The military force of the nation, consisting of citizens called
forth to execute the laws of the Union, suppress insurrection and repel
invasion.
2. The Constitution of the United States provides on this subject as
follows: Art. 1, s. 8, 14. Congress shall have power to provide for calling
forth the militia to execute the laws of the Union, suppress insurrections,
and repel invasions.
3.-15. to provide for organizing, arming, and disciplining the
militia, and for governing such part of them as may be employed in the
service of the United States, reserving to the states respectively, the
appointment of the officers, and the authority of training the militia,
according to the discipline prescribed by congress.
4. Under the clauses of the constitution, the following points have
been decided.
1. If congress had chosen, they might by law, have considered a militia
man, called into the service of the United States, as being, from the time
of such call, constructively in that service, though not actually so,
although he should not appear at the place of rendezvous. But they have not
so considered him, in the acts of congress, till after his appearance at the
place of rendezvous: previous to that, a fine was to be paid for the
delinquency in not obeying the call, which fine was deemed an equivalent for
his services, and an atonement for disobedience.
5.-2. The militia belong to the states respectively, and are subject,
both in their civil and military capacities, to the jurisdiction and laws of
the state, except so far as these laws are controlled by acts of congress,
constitutionally made.
6.-3. It is presumable the framers of the constitution contemplated a
full exercise of all the powers of organizing, arming, and disciplining the
militia; nevertheless, if congress had declined to exercise them, it was
competent to the state governments respectively to do it. But congress has
executed these powers as fully as was thought right, and covered the whole
ground of their legislation by different laws, notwithstanding important
provisions may have been omitted, or those enacted might be beneficially
altered or enlarged.
7.-4. After this, the states cannot enact or enforce laws on the same
subject. For although their laws may not be directly repugnant to those of
congress, yet congress, having exercised their will upon the subject, the
states cannot legislate upon it. If the law of the latter be the same, it is
inoperative: if they differ, they must, in the nature of things, oppose each
other, so far as they differ.
8.-5. Thus if an act of congress imposes a fine, and a state law fine
and imprisonment for the same offence, though the latter is not repugnant,
inasmuch as it agrees with the act of the congress, so far as the latter
goes, and add another punishment, yet the wills of the two legislating
powers in relation to the subject are different, and cannot subsist
harmoniously together.
9.-6. The same legislating power may impose cumulative punishments;
but not different legislating powers.
10.-7. Therefore, where the state governments have, by the
constitution, a concurrent power with the national government, the former
cannot legislate on any subject on which congress has acted, although the
two laws are not in terms contradictory and repugnant to each other.
11.-8. Where congress prescribed the punishment to be inflicted on a
militia man, detached and called forth, but refusing to march, and also
provided that courts martial for the trial of such delinquent's, to be
composed of militia officers only, should be held and conducted in the
manner pointed out by the rules and articles of war, and a state had passed
a law enacting the penalties on such delinquents which the act of congress
prescribed, and directing lists of the delinquents to be furnished to the
comptroller of the United States and marshal, that further proceeding might
take place according to the act of congress, and providing for their trial
by state courts martial, such state courts martial have jurisdiction.
Congress might have vested exclusive jurisdiction in courts martial to be
held according to their laws, but not having done so expressly, their
jurisdiction is not exclusive.
12.-9. Although congress have exercised the whole power of calling out
the militia, yet they are not national militia, till employed in actual
service; and they are not employed in actual service, till they arrive at
the place of rendezvous. 5 Wheat. 1; Vide 1 Kent's Com. 262; 3 Story, Const.
Sec. 1194 to 1210.
13. The acts of the national legislature which regulate the militia are
the following, namely: Act of May 8, 1792, 1 Story, L. U. S. 252; Act of
February 28, 1795, 1 Story, L. U. S. 390; Act of March 2, 1803, 2 Story, L.
U. S. 888; Act of April 10, 1806, Story, L. U. S. 1005; Act of April 20,
1816, 3 Story, L. U. S. 1573; Act of May 12, 1820, 3 Story, L. U. S. 1786
Act of March 2, 1821, 3 Story; L. U. S. 1811.

An Irish emigre, Smith was among the first Grantees of Chester County, New Hampshire, and a lieutenant with ties to the state militia, which Wentworth championed during his governorship, adding 1,600 men to their number and regularly attending regimental reviews.

247) This literature then manifested itself into the myth that the Second Amendment would be moot if interpreted as a militia-focused constitutional right because the federal government could preempt any state militia laws.

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